REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1153  of 2002

State of Punjab ...Appellant

Versus

 Bakhshish Singh & Ors.  ...Respondents

  J U D G M E N T    

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Punjab  and  Haryana  High  Court  directing  acquittal  of  respondents

Bakhshish  Singh,  Balraj  Singh  and  Gurmeet  Kaur  while  altering  the

conviction of respondent Balbir Singh from one under Section 302 of the

Indian Penal Code, 1860 (in short the ‘IPC’) to one under Section 304 Part I

IPC. Learned Additional Sessions Judge Gurdaspur, had convicted each of

the respondents for offence punishable under Section 302 read with Section

34 IPC.

2. Prosecution version as unfolded during trial is as follows:

Agricultural lands of Kabul Singh (PW4) and that of Mangal Singh

(hereinafter  referred  to  as  the  ‘deceased’),  his  nephew,  and  that  of

respondent-Bakhshish Singh and others adjoin each other and are located in

the same vicinity in village Bhoa and fall within the jurisdiction of Police

Station Sadar, Pathankot, District Gurdaspur. The land of Darshan Singh is

also located nearby. About one week before the occurrence Darshan Singh

was  irrigating  his  land  with  canal  water.  The  canal  water  over-flowed

through the Khal including the fields of Kabul Singh PW4 and entered into

the  fields  of  accused  Bakhshish  Singh  wherein  wheat  crops  were  sown.

Though this canal water had come, perhaps, from the field of Darshan Singh

to the fields of the appellants but the accused were feeling that the canal

water had come through the fields of deceased Mangal Singh. So, it was in

this wake that on 1.5.1994, around 9.00 A.M. while Kabul Singh PW4 and

his  nephew deceased Mangal  Singh were returning from the fields along

with Swinder Kaur (PW5), mother of Mangal Singh, the accused persons,

namely, Bakhshish Singh and Balbir Singh armed with a dang each, Balraj

Singh armed with Chhavi were found standing on the pucca culvert on the

metalled road near the house of accused Bakhshish Singh. Gurmeet Kaur

raised a lalkara saying that Kabul Singh and Mangal Singh should not be

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allowed to escape as they had damaged their crops. Bakhshish Singh and

Balbir Singh took Mangal Singh in their grip and threw him on the ground

while accused Balraj Singh at the instigation of his mother Gurmeet kaur

inflicted a Chhavi blow on the head of Mangal Singh and it is only when the

close relations of the deceased prayed for sparing the life of Mangal Singh,

the  accused  persons  ran  away  from  the

scene  of  occurrence.  Mangal  Singh  was  removed  to  Civil  Hospital,

Pathankot from where he was referred to C.M.C. Ludhiana.

The aforesaid Mangal Singh breathed his last due to injuries on the

way of Ludhiana. The dead body was brought to Civil Hospital, Pathankot.

The statement Ex. PJ of Kabul Singh was recorded by SI Jarnail Singh PW8

at  7.30  P.M.  on  1.5.1994  and  on  its  basis  formal  F.I.R.  Ex.  PJ/2  was

recorded  at  7.55/8.55  P.M.  on  1.5.1994.  The  special  report  reached  the

learned Ilaga Magistrate  at  5.05  A.M. on  2.5.1994.  Thereafter  SI  Jarnail

Singh (PW8) went to Civil Hospital, Pathankot and prepared inquest report

Ex.PL  and  sent  the  dead  body  for  postmortem.  On  2.5.1994,  the

Investigating Officer went to the scene of occurrence and prepared rough

site plan Ex.PO with marginal notes. He took into possession five copies of

sale  deeds  produced by Kabul  Singh vide memo Ex.PK. Accused Balbir

Singh,  Bakhshish  Singh  and  Balraj  Singh  were  arrested  on  5.5.1994.  In

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pursuance of his disclosure statement on Ex.PP, accused Balraj Singh got

recovered  Gandasi  Ex.  P1  which  was  taken  into  possession  vide  memo

Ex.PR. Accused Gurmeet Kaur was also arrested.

Dr.  Sunil  Ghai  (PW2)  conducted  autopsy  on  the  dead  body  of

deceased Mangal Singh on 2.5.1994 and found the following injury:-

1) Lacerated wound 2 cm x 0.5. cm stitched present on the middle of the

head approximately 2 cm. Left to the mid line. On dissection, underlying

parietal  bone  was  fractured.  S/C  tissue  was  lacerated  and  there  was

extradural and sub dural haematoma present. Brain tissue underlying was

lacerated.

In the opinion of the doctor, the cause of death was due to the injuries

to  the  vital  organ  brain  caused  by  injury  No.1.  The  injuries  were  ante

mortem in nature  and sufficient  to  cause death in  the ordinary course of

nature. Ex. P.C. is the copy of the post mortem report.

After completion of investigation,  charge sheet was filed and since

the  accused  persons  pleaded  innocence,  trial  was  held.   The  trial  court

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placed  reliance  on  the  evidence  of  PW 4,  the  complainant,  PW 5  who

claimed to be an eye witness to hold the accused persons guilty.

In appeal the basic stand of the accused persons was that there was

absolutely no evidence so far as accused Bakhshish, Balbir and Gurmeet are

concerned. So far as Gurmeet is concerned it is stated that she is stated to

have only raised a lalkara and that so far as accused Bakhshish and Balbir

are concerned they are supposed to have held the accused in their grip while

accused Balraj inflicted a single blow.  The stand of the prosecution was

that by application of Section 34 IPC each one of them had been rightly

found guilty.  The High Court found that the evidence did not establish the

roles purportedly played by Gurmeet, Balbir and Bakhshish. It also noted

that  only a single  blow was given by Balraj  and that  too in  course of a

sudden  quarrel.   Accordingly  as  noted  above  Gurmeet,  Balbir  and

Bakhshish were acquitted while the conviction of Balraj was confirmed.

3. In support of the appeal learned counsel for the appellant submitted

that the High Court ought to have held that Section 34 has full application

to  the  facts  of  the  case.  It  should  not  have  altered  conviction  so  far  as

accused Balbir is concerned.

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4. Learned counsel for the respondents on the other hand supported the

judgment of the High Court.

5. Section 34 has been enacted on the principle of joint liability in the

doing of a criminal act. The Section is only a rule of evidence and does not

create a substantive offence.  The distinctive feature of the Section is  the

element of participation in action. The liability of one person for an offence

committed by another in the course of criminal act perpetrated by several

persons arises under Section 34 if such criminal act is done in furtherance of

a common intention of the persons who join in committing the crime. Direct

proof  of  common  intention  is  seldom  available  and,  therefore,  such

intention can only be inferred from the circumstances appearing from the

proved facts of  the  case and the proved circumstances.  In order to bring

home the charge of common intention, the prosecution has to establish by

evidence, whether direct or circumstantial, that there was plan or meeting of

mind of all the accused persons to commit the offence for which they are

charged with the  aid of Section 34,  be it  pre-arranged or  on  the spur of

moment; but it must necessarily be before the commission of the crime.  The

true contents of the Section are that if two or more persons intentionally do

an act jointly, the position in law is just the same as if each of them has done

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it individually by himself.  As observed in Ashok Kumar v. State of Punjab

(AIR  1977  SC  109),  the  existence  of  a  common  intention  amongst  the

participants  in  a  crime  is  the  essential  element  for  application  of  this

Section. It is not necessary that the acts of the several persons charged with

commission of an offence jointly must be the same or identically similar.

The acts may be different in character, but must have been actuated by one

and the same common intention in order to attract the provision.

6. As it originally stood, Section 34 was in the following terms:

“When a criminal act is done by several persons, each of such persons is  liable for that act in the same manner as if the act was done by him alone.”

7. In 1870, it was amended by the insertion of the words “in furtherance

of the common intention of all” after the word “persons” and before the

word “each”, so as to make the object of Section 34 clear.  This position

was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).   

8. The Section does not say “the common intention of all”, nor does it

say “and intention common to all”.  Under the provisions of Section 34 the

essence of the liability is to be found in the existence of a common intention

animating the accused leading to the doing of a criminal act in furtherance

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of such intention. As a result of the application of principles enunciated in

Section  34,  when  an  accused  is  convicted  under  Section  302  read  with

Section  34,  in  law it  means  that  the  accused  is  liable  for  the  act  which

caused death of the deceased in the same manner as if it was done by him

alone. The provision is intended to meet a case in which it may be difficult

to  distinguish  between acts  of  individual  members of  a party who act  in

furtherance of the common intention of all or to prove exactly what part was

taken by each of them.  As was observed in  Ch. Pulla Reddy and Ors. v.

State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even

if no injury has been caused by the particular accused himself.  For applying

Section 34 it  is  not  necessary to show some overt  act  on the part  of the

accused.

9. The  above  position  was  highlighted  recently  in  Anil  Sharma  and

Others v. State of Jharkhand [2004 (5) SCC 679],   in Harbans Kaur v. State

of  Haryana  [2005(9)  SCC 195]  and  Amit  Singh Bhikamsingh  Thakur v.

State of Maharashtra [2007(2) SCC 310].

10. The High Court analysed the evidence of PWs 4 & 5 to come to the

conclusion that the role of the acquitted accused persons do not really attract

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Section 34 IPC.  So far as alteration of conviction is concerned though in all

cases it cannot be said that when only a single blow is given Section 302

IPC is made out yet it would depend upon the factual scenario of each case;

more particularly the nature of the offence, the background facts, the part of

the body where the injury is inflicted and the circumstances in which the

assault is made.

11. In the instant  case prosecution version itself  shows that there were

altercations.  In  that  view  of  the  matter  the  High  Court  was  justified  in

altering the conviction from Section 302 to Section 304-I IPC.

12. We find no merit in this appeal, which is accordingly dismissed.

……………..................................J. (Dr. ARIJIT PASAYAT)  

……. ............................................J.      (Dr. MUKUNDAKAM SHARMA) New Delhi  October 17, 2008

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